(dissenting). I dissent and would affirm the holding of Special Term to the effect that Epping Trust No. 4 gave to the respondent widow a “ fractional share ” of the trust property.
As the court observed in Matter of Lewine (55 Misc 2d 734), the cases indicate no little ingenuity has been exercised in endeavoring to insulate the estate of a surviving spouse from *417fluctuations of the securities market. And it is true that in deciding whether the testator’s intent was to be “ fractional ” or “ pecuniary ”, in many cases a feather could tip the balance. In Epping Trust No. 4 herein, I think the balance tips in favor of the surviving widow.
Surveying the trust instrument from four corners, the donor’s plan, not unnaturally, was to favor his widow and to assure that she receive the maximum amount on distribution. The other objects of his natural bounty were provided for in separate trusts. It is significantly directed in subdivision C of article First that the entire corpus of Trust No. 4 be treated “ as though it were the residuary portion of the Donor’s estate.” Paragraph 2 of subdivision D of article First provided that the marital deduction share “ shall be computed as though the Donor’s entire taxable estate passed to the Donor’s wife ”. The provisions for the widow in paragraphs 1 and 2 of subdivision D of article First come ahead of all others in numerical priority. Furthermore, the donor named his wife as executrix of his testamentary estate, with attendant powers affecting the valuation date of the gross estate, the exercise of which could derogate from the interest of the other beneficiaries, to her advantage.
Accordingly, I do not perceive in the whole instrument any clear intent that the ultimate size of the widow’s estate be diminished by a finding that she be awarded a fixed sum and be frustrated from sharing in any appreciation in the value of the estate assets. To the contrary, it is my view that the widow was intended and is entitled to have a fractional share.
To the foregoing extent, I agree with Special Term.
Eager and Bastow, JJ., concur with Stevens, J. P.; McGtvern, J., dissents in opinion in which Tilzer, J., concurs.
Judgment modified on the law, the facts and in the exercise of discretion, to the extent of approving the trustee’s first and final account as originally filed to overrule objections 1 and 2 of respondent-respondent-appellant; modifying the second ordering paragraph to declare she is entitled to a pecuniary gift under paragraph 2 of subdivision D of article First of the trust; and sustaining the objections to the appointment of the guardian ad litem for Claire Elizabeth Arnold, striking such appointment, and the direction for payment for services rendered in connection with such appointment, and, as so modified, affirmed, with $50 costs and disbursements to all parties filing briefs, payable out of the estate.